GOPAL PEMA Vs. BONDAR BIRDAJI

JUDGEMENT

(1.) THIS second appeal of the plaintiff Gopal is directed against the reversing decree passed by Shri S. N. Chaturvedi, Additional District Judge, Dhar, in Civil Appeal No. 112/57, dismissing his suit for declaration and possession of the plaint property as barred by time. The question involved in this case is whether the provisions or principles of the Hindu Law of Inheritance (Amendment) Act, 1929 (Act No. II of 1929) were in force at the material time in the erstwhile Gwalior State where the suit property belonging to deceased Chhitar is situated, and whether, therefore, after the death of Hemi, the sister of Chhitar, the plaintiff as sister's son became entitled to inherit the property. The property in suit which consists of agricultural holding about 33 acres and a house is situated at mouza Ajanda and belonged to one Chhitar of the said mourn a village which is situated in the erstwhile territory of Gwalior State. He had two sisters Hemi and Punji. Punji pre -deceased him and plaintiff Gopal is Punji's son. Defendant -respondent No. 1 Bondar claims to be the adopted son of Chhitar under the adoption deed dated 9 -2 -1942 executed by Chhitar. Thereafter Chhitar died in February, 1942. It is common ground that the parties are governed by Benaras School of Hindu Law which was also in force in the erstwhile Gwalior State at the material time. It is also common ground that under the Benaras School of Hindu Law, sister was not an heir but sister's son was, and he could inherit his maternal -uncle's property as a 'Bandhu'. On or about 15 -4 -1912, i.e. after about two months of Chhitar's death, plaintiff Gopal had brought a suit in the Court at Manawar challenging Bondar's adoption as invalid and claiming possession of the suit property. In that suit, Bondar was a principal defendant and Chhitar's sister Hemi was a co -defendant. That suit was dismissed on 18 -12 -1945. Plaintiff's first appeal to a Court at Sardarpur was also dismissed on 11 -9 -1946 and his second appeal to the District Judge, Ujjain, too was dismissed on 16 -10 -1948. These decisions, specially the decision of the first appellate Court at Sardarpur, show that the plaintiff failed to establish that there were no better claimants or claimants to inherit Chhitar's property in preference to the applicant. Thereafter nothing was done by the plaintiff.

(2.) THEN Chhitar's sister Hemi died in 1953. Thereafter the plaintiff filed the suit out of which this appeal arises, on 29 - -3 -1955, against defendant -respondent No. 1 Bondar who claims to be the adopted son of Chhitar and defendant -respondent No, 2 who bad been adopted by Bondar. In this suit he challenged the adoption of Bondar and Limba as invalid and claimed possession of the suit property as an heir of Chhitar's sister's son under the Hindu Law of Inheritance (Amendment) Act, 1929. He admitted that defendant Bondar has been in possession of the said property since the death of Chhitar. It would be found that the present suit has been brought by him more than 12 years after the death of Chhitar. He however alleged that the cause of action for the suit arose in 1953 when Chhitar'a another sister Hemi died and thus he claimed the suit to be within time under Article 141 of the First Schedule to the Limitation Act. The defendants, inter alia, pleaded that plaintiff's suit for possession was barred by time as it was brought 12 years after the death of Chhitar. They denied that the cause of action for the present suit arose in 1953 on Hemi's death and asserted that it had arisen in February, 1942, on the death of Chhitar. it was also their case that neither the Hindu Law of Inheritance (Amendment) Act, 1929, was applicable nor the plaintiff could claim the property under the Kanoon Mal Gwalior as neither sister nor sister's son was recognized there as heir to inherit agricultural holding. Amongst other findings, the trial Court held that Bandar's adoption was invalid, that the Hindu Law of Inheritance (Amendment) Act, 1929 was applicable to the parties and, therefore, cause of action for the suit arose in 1953 after He mi's death and accordingly the suit was within time under Article 141 of the First Schedule to the Limitation Act. It also held that the plaintiff was entitled to inherit agricultural holding even under the Kanoon Mal Gwalior. On appeal by the defendants, the appellate Court did not consider it necessary to give finding on the point of adoption. It however held that the Hindu Law of Inheritance (Amendment) Act was not applicable to this case, it, therefore, found that the cause of action arose in 1942 when Chhitar died and not in 1953 on Hemi's death. It also held that under the Kanoon Mal Gwalior the plaintiff was not entitled to inherit the agricultural holding of Chhitar. So it reversed the decree and dismissed plaintiff's suit as barred by time. It probably did so under Article 140 of the Indian Limitation Act. Being aggrieved by this decision, the plaintiff has preferred this appeal. The question is whether the cause of action for plaintiff's suit arose in 1942 when Chhitar died or in 1953 when his sister Hemi died. This would depend on the point whether the provisions or principles of the Hindu Law of Inheritance (Amendment) Act, 1929, were applied or adopted in the erstwhile Gwalior State at the material time. In Gwalior State, principles of Mitakshara were followed. Admittedly the parties are governed by the Benaras School and in this School sister was not an heir though the sister's son was as he could inherit the property of his maternal uncle as a 'Bandhu'. By the Hindu Law of Inheritance (Amendment) Act, 1929, which came into force on 2lst February, 1929, sister and after her death sister's son were included amongst heirs. The said Amendment Act was extended to all the Provinces of the erstwhile British India. The question is whether the said enactment of British India or its principles were adopted, enacted or applied to the Gwalior State at the material period. If not, then the cause of action for plaintiff's suit had arisen in 1942 when Chhitar died. If it was, then the cause of action would arise in 1953 when Hemi died. In the former case, the suit would be barred by time having been filed after 12 years but in the latter case it would be within time. It is not the case of the appellant that the Hindu Law of Inheritance (Amendment) Act was bodily applied or re -enacted in the erstwhile Gwalior State. What Shri Vijayvargi, counsel for the appellant, argued is that by virtue of some Departmental Order of the State of Gwalior the principles of the said Amendment Act came to be applied to the Gwalior State. It was further argued that the Hindu Law as was in force in British India at the material time was also in force in the Gwalior State but as by the Amendment Act Hindu Law in British India was amended, so the Hindu Law in Gwalior State also automatically stood amended. In other words, the change in the law in British India automatically brought the change in the identical law in the State of Gwalior.

(3.) IT was then urged that in view of the stand taken by respondent Bondar in the previous litigation between the parties, he cannot now be permitted to take up a contradictory and inconsistent stand in the present suit on the principle that a party litigant cannot be permitted to play fast and loose, to blow hot and cold, or to approbate and reprobate to the detriment of his opponent. The argument was that in the previous suit respondent Bonder has pleaded that the Hindu Law of Inheritance (Amendment) Act, 1929, applied to the Gwalior State that Hemi who was alive then being Chhitar's sister was Chhitar's heir in preference to the appellant and, therefore, the appellant had no locus standi to bring that suit, that these pleas and arguments advanced on behalf of Bondar in previous appeals prevailed with those Courts and on that account his suit and appeals were dismissed. It was urged that though under the Benaras School of Hindu Law which was in force in Gwalior State at that time sister was not an heir but he was as he could inherit Chhitar's property as a 'Bandhu', yet his suit and appeals were dismissed to his detriment on account of the position taken by Bondar in that suit. Accordingly it was canvassed that Bondar cannot be permitted to take up inconsistent position in the present suit out of which this appeal arises. The learned counsel relied on Ramsaran v. Iswar : AIR 1936 Pat. 10; D. Narain Rav v. Joges Chandra De : AIR 1924 Cal. 600; Hemanta Kumari Devi v. Prasanna Kumar, AIR 1939 Cal. 32 and Indermull v. Sub -Judge, Seccunderabad : AIR 1958 AP 779. The substance of these rulings is that a party litigant cannot be permitted to assume inconsistent position in Court, to play fast and loose, to blow hot and cold; to approbate and reprobate to the detriment of his opponent; and that this wholesome doctrine applies not only to the successive stages of the same suit but also to another suit other than the one on which the position was taken up, provided the second suit grows out of the judgment in the first. The entire argument is without any foundation and in fact it is beyond the record. To substantiate the propositions advanced on behalf of the appellant that the respondent Bondar is estopped from adopting the alleged contradictory or inconsistent positions, it was necessary for the appellant to file and prove the copies of the plaint and written statement of the previous suit to ascertain what was alleged by the plaintiff and what position was taken by the defendant -respondent in that suit and what position has now been taken by him in the instant suit. This has not been done with the result that no issue was struck on the point of estoppel in the trial Court nor any arguments advanced. Before me reference was made to the judgment of the first appellate Court and the second appellate Court of the previous litigation and from these I was asked to infer that the pleas as attributed to the defendant Bondar were taken by him in the previous suit. This is a strange stand. In fact from the judgment of the first appellate Court at Sardarpur it is clear that the plaintiff failed in this suit because he could not establish that there was no better claimant in existence in preference to the plaintiff at that time. It is also clear from that judgment that the Hindu Law of Inheritance (Amendment) Act, 1929, was not applied to the State of Gwalior. Accordingly the contentions raised on behalf of the appellant have no substance.